Naomi Linah Were & another v National Social Security Fund Board of Trustees [2019] KEELC 3406 (KLR)
The bottom line
#The Environment and Land Court dismissed a family's claim to own a Nairobi house because they could not prove a valid, signed tenant purchase agreement with NSSF.
What this practically means
#Executive summary
#Key legal issues
#Existence and enforceability of the tenant purchase agreement
No contract existed between the two plaintiffs jointly and the defendant; the 2nd plaintiff alone executed the agreement and herself terminated it in writing on 22/11/2001
The agreement produced (Plaintiff Exhibit 7) was signed by only three of four proposed purchasers, was neither witnessed nor certified, and was never executed by the defendant. The 2nd plaintiff's own evidence confirmed she executed a separate agreement, failed to pay monthly instalments of Kshs 107,000, and terminated the contract in writing while acknowledging indebtedness. The property was subsequently sold and transferred to a third party in possession.
Claim to ownership of the suit property
The plaintiffs failed to prove ownership; the claim was dismissed
There was no evidence that the plaintiffs jointly or otherwise paid the purchase price. The 2nd plaintiff failed to raise the agreed instalments, terminated the contract in writing, and acknowledged owing rent arrears of Kshs 2,388,700 which were not controverted. The property had been sold to a third party who was in possession, so no declaration of ownership could issue.
Refund of monies paid and rent for alternative accommodation
The defendant was not liable to refund any of the sums claimed
The 2nd plaintiff acknowledged in writing at termination that she owed the defendant money, and the family vacated with uncontroverted rent arrears of Kshs 2,388,700. The defendant's witness testified that monies paid were offset against the rent arrears. As the plaintiffs voluntarily moved out after themselves terminating the agreement, the defendant could not be condemned to pay rent they paid to a subsequent landlord.
General damages for breach of contract
Not awardable; no proved breach
Damages for breach of contract require proof of a valid contract and breach of specific terms. Since the court found no contract between the two plaintiffs and the defendant, and the 2nd plaintiff herself terminated the sole agreement, there was no evidence of any breach by the defendant and no basis for awarding general damages for emotional stress or embarrassment.
Costs
Each party to bear their own costs despite the dismissal
The court would ordinarily have awarded the defendant costs upon dismissal of the suit, but the defendant withheld the material contract which was necessary evidence for the prompt determination of the dispute. That conduct contributed to the filing of the suit, justifying departure from the ordinary rule that costs follow the event.
Legal principles established
#- A party claiming ownership under a tenant purchase agreement must prove the contract and payment of the purchase price; an agreement not executed by the seller creates no enforceable contract
- Damages for breach of contract require proof of a valid contract and breach of specific terms
- A party who withholds a material contract necessary for the prompt determination of the dispute may be denied costs even where the suit is dismissed
Court orders
#- 1.The plaintiffs' suit is dismissed for failure to prove the case on a balance of probabilities
- 2.There will be no order as to costs; each party bears their respective costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to land (suit premises LR 12948/78 Mountain View, Nairobi); no specific constitutional/statutory provision cited in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Naomi Linah Were & another v National Social Security Fund Board of Trustees [2019] KEELC 3406 (KLR)", Case Analysis (2019). Not stated in judgment (further amended plaint dated 18/4/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3406/eng@2019-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.